When Federalism Meets Executivism

What happens when the Bush administration is forced to choose between federalism, Texas and the death penalty on one hand and the supremacy of the executive branch on the other? The answer can be found in the Solicitor General’s brief in support of certiorari in Medellin v. Texas.

Medellin is a case involving a Mexican national who was convicted of raping and murdering two teenage girls and sentenced to death by a Texas court. In his habeas petition, Medellin argued that his conviction should be overturned because he had not been informed of his right to contact the Mexican consul upon arrest, as guaranteed by the Vienna Convention on Consular Relations, to which the United States is a party. A federal court rejected his petition, but the International Court of Justice ruled, in a case involving Medellin and 50 other Mexicans, that the United States had violated the Convention. The ICJ also ruled that the United States was obligated to provide judicial review of the convictions to determine whether the violations prejudiced any of the defendants.

Enter President Bush, who took two steps. First, he withdrew from a part of the Convention requiring that disputes be resolved by the ICJ. (“We’re taking our ball and going home.”) Second, he determined that the U.S. would comply with the ICJ’s order by having state courts reconsider the 51 convictions. But Texas is having none of it. The Texas Court of Criminal Appeals ruled that Bush exceeded his powers by directing state courts to reconsider the convictions. Now, Medellin has appealed to the Supreme Court, and the Solicitor General has filed an amicus brief supporting his petition for certiorari.

The brief makes clear Bush’s disdain for the ICJ and his disagreement with its order. But it is mainly concerned with beating back Texas’ challenge to executive authority. In the process, it takes some interesting turns. For one thing, it asserts that when “the President acts pursuant to his authority under treaties of the United States, principles of federalism do not stand as an obstacle.” This is the orthodox view of the treaty power, articulated most famously by Justice Holmes in Missouri v. Holland. But it has been challenged by conservatives who argue that the Court’s recent federalism cases call Missouri into doubt. One might have expected the Bush Administration to sympathize with this argument. But its belief in executive supremacy apparently outweighs its concern for state sovereignty. This isn’t entirely surprising. Conservatives have brushed aside federalism in other cases, especially when dealing with state courts. See Bush v. Gore. The Bush Administration also clashed with states in the recent case of Massachusetts v. EPA. All of which shows that, for most people, federalism is a lot like judicial activism: a convenient rallying cry until it gets in your way.

Another line in the brief also caught my attention. In disputing the Texas court’s ruling, the Solicitor General invokes “the President’s unique role in foreign affairs, his statutory responsibilities, and his traditional authority in judicial proceedings implicating international law.” Come again. The brief cites Justice Jackson’s opinion in Youngstown for this proposition, preceded by Cf. But Jackson’s statement that the president’s power is at its height when he acts with the express or implied approval of Congress hardly supports this claim. One could argue that the Court should consider the president’s views when resolving cases that involve international law or foreign affairs. But that’s far different from arguing that the president has “traditional authority in judicial proceedings implicating international law.” The latter argument sounds like the claim of executive supremacy that the Court roundly rejected in the recent Guantanamo cases.